Defendants' Motion to Intervene

    05/14/98 THU 16:37 FAX 919 967 4953 FERGUSON STEIN 
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// 

UNITED STATES DISTRICT COURT 

Md, EASTERN DISTRICT OF NORTH CAROLINA 

RALEIGH DIVISION 

CIVIL ACTION NO. 4:96-CV-104 tot 

FILED 
NOV 26 1997 MARTIN CROMARTIE, THOMAS 

CHANDLER MUSE, R.O. EVERETT, 

J H FROELICH, JAMES RONALD 
for 

LINVILLE, and SUSAN HARDAWAY, 
£) WV, DANGER, SABRI 

OA STRICT COURT 

er 
E DIST. NO. CAR 

Plaintiffs, 

V. 

) 
) 
) 
) 
) 
) 
) 
) 
) 

JAMES B. HUNT, JR, in his official ) 

capacity as Governor of the State of North ) 

Carolina, DENNIS WICKER, in his ) 

official capacity as Lieutenant Governor of ) 

the State of North Carolina, HAROLD ) 

BRUBAKER in his official capacity as ) 

Speaker of the North Carolina House of ) 

Representatives, ELAINE MARSHALL ) 

ord! in her official capacity as Secretary of the) 

State of North Carolina, and LARRY ) 

LEAKE, S. KATHERINE BURNETTE,  ) 

FAIGER BLACKWELL, DOROTHY ) 

PRESSER and JUNE YOUNGBLOOD ) 

in their capacity as the North Carolina ) 

Board of Elections, ) 

) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 

Defendants 

and 

ALFRED SMALLWOOD, DAVID 

MOORE, WILLIAM M. HODGES, 

ROBERT L. DAVIS, JR, JAN VALDER, 

BARNEY OFFERMAN, VIRGINIA 

NEWELL. CHARLES LAMBETH, and 

GEORGE SIMKINS, 

Applicants to Intervene as 

Defendants. 

      
  

  
  

  
  

 



   
05/14/98 THU 16:38 FAX 919 967 4953 FERGUSON STEIN [21003 

MOTION OF ALFRED SMALLWOOD, DAVID MOORE 

~~ WILLIAM M. HODGES, ROBERT L. DAVIS, JR., JAN VALDER, 

BARNEY OFFERMAN, VIRGINIA NEWELL, 

CHARLES LAMBETH AND GEORGE, SIMKINS TQ INTERVENE 

Now come Alfred Smallwood, David Moore, William M. Hodges, Robert L. Davis, Jr., 

Jan Valder, Barney Offerman, Virginia Newell, Charles Lambeth and George Simkins applicants 

for intervention as defendants [hereinafter “Applicants”] pursuant to Fed.R.Civ.P.24(a) and (b) 

and move this court for leave to intervene as defendants in this action in order to assert their 

defenses as set forth in their proposed Answer, a copy of which is attached hereto as Exhibit A. 

In support thereof, Applicants show the Court the following: 

§ Applicants Alfred Smallwood and David Moore are African American registered 

voters and William M. Hodges is a white registered voter. Smallwood, Moore and Hodges reside 

within the First Congressional District in the congressional redistricting plan approved as an 

adequate remedy in Shaw v. Hunt, No. 92-202-CIV-5, in a judgment filed September 15, 1997 

[hereinafter “1997 Remedy Districts” or ©1997 Remedy Plan™]. These applicants’ residences are: 

(a) Alfred Smallwood, Post Office Box 346, Gatesville, Gates County, North 

Carolina 27938, 

(b) David Moore, 102 West Fourth Street, Washington, Beaufort County, 

North Carolina 27889; and 

(c) William M. Hodges, 116 Washington Harbour, Washington, Beaufort 

County, North Carolina 27889. 

2 Applicants Smallwood, Moore and Hodges, together with other voters who reside 

in different districts of the 1997 Remedy Plan, filed a motion to intervene in this action on July 11, 

1996. which motion was never ruled on by this Court. 

 



   
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3. Applicants Robert L. Davis, Jr., Virginia Newell, and George Simkins are African 

American registered voters. Applicants Jan Valder, Barney Offerman, and Charles Lambeth are 

white registered voters, These six applicants reside within the 12th congressional district in the 

1997 Remedy Plan. Their residences are. 

(a) Robert L. Davis, Jr., 1925 Amold Drive, Charlotte, Mecklenburg County, 

North Carolina 28205 

(b) Virginia Newell, 2429 Pickford Court, Winston-Salem, Forsyth County, 

North Carolina; 

(<) Dr, George Simkins, 161 N., Dudley Street, Greensboro, Guilford 

County, North Carolina, 

(d) Jan Valder, 1418 Euclid Avenue , Charlotte, Mecklenburg County, North 

Carolina, 

(e) Barney Offerman, 1418 Euclid Avenue, Charlotte, Mecklenburg County, 

North Carolina, and 

Nr (f) Charles Lambeth, 10 Lodge Drive, Thomasville, Davidson County, North 

Carolina. 

4, All Applicants sought, and were allowed, to intervene as of right as party 

defendants in Shaw v. Hunt, No. 92-202-CIV-5 (Order, September 7, 1993) copy attached as 

Exhibit 2. These Applicants participated fully in that case in the trial court and in the United 

States Supreme Court, including in the proceedings which culminated wit the approval of the 

1997 Remedy Plan. 

5, Applicants seek to assert and protect the same interests in this case as they did mn 

Shaw v. Hunt, In this case they will do so by defending the 1997 Remedy Plan as constitutional, 

and. if necessary asserting their voting rights under the United States Constitution and the Voting 

Rights Act if any districts are redrawn. 

0 : 

  

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6, Applicants also satisfy all requirements of Fed R Civ.P. 24(b), and are entitled to 

permissive intervention as well as, intervention of right. 

WHEREFORE, Applicants pray that their motion to intervene be granted. 

This 25th day of November, 1997. 

/] : om 

ADAM STEIN J 
ANITA S. HODGKISS 

Ferguson, Stein, Wallas, Adkins, Gresham & 

Sumter, P.S. 
312 West Franklin Street 

Chapel Hill, North Carolina 27516 

(919) 933-5300 

    
  

ELAINE R. JONES 

Director-Counsel 

NORMAN J. CHACHKIN 

JACQUELINE A. BERRIEN 

NAACP [egal Defense and Educational Fund, Inc. 

99 Hudson Street, Suite 1600 

New York, New York 10013 

(212) 219-1900 

Attorneys for Applicants to Intervene as Defendants 

 



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CERTIFICATE OF SERVICE 

The undersigned hereby certifies that she has this day served a copy of the foregoing 

MOTION OF ALFRED SMALLWOOD, DAVID MOORE, WILLIAM M. HODGES, 

ROBERT L. DAVIS, JR., JAN YALDER, BARNEY OFFERMAN, VIRGINIA NEWELL, 

CHARLES LAMBETH AND GEORGE SIMKINS TO INTERVENE upon opposing 

counsel by depositing a copy of same in the United States mail, postage prepaid, addressed to: 

Mr. Robinson O. Everett 

Suite 300 First Union National 

Bank Building 
Post Office Box 586 

Durham, North Carolina 27702 

Mr, Edwin M. Speas, Jr. 

Senior Deputy Attorney General 
North Carolina Department of Justice 
Post Office Box 629 

Raleigh, North Carolina 27602-0629 

This 25th day of November, 1997. 

> Ce 
L] 

ANY 3 Loch A eres 
Attorney for Applicantsto Intervene 

as Defendants 

        

 



   
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UNITED STATES DISTRICT COURT ; 

EASTERN DISTRICT OF NORTH CAROLINA 

RALEIGH DIVISION FILED 
CIVIL ACTION NO. 4:96-CV-104 

NOV 26 1997, 

MARTIN CROMARTIE, THOMAS DAVID W. DANIEL © 

CHANDLER MUSE, R.O. EVERETT, 
US DISTRICT Chur 

J H. FROELICH, JAMES RONALD E. DIST. No, 

LINVILLE, and SUSAN HARDAWAY, 

Plaintiffs, 

Y. 

) 
) 
) 
) 
) 
) 
) 
) 
) 

JAMES B. HUNT, JR, in his official ) 

capacity as Governor of the State of North) 

Carolina, DENNIS WICKER, in his ) 

official capacity as Lieutenant Governor of ) 

the State of North Carolina, HAROLD ) 

BRUBAKER in his official capacity as ) 

Speaker of the North Carolina House of) 

Representatives, ELAINE MARSHALL ) 

Sis? in her official capacity as Secretary of the) 

State of North Carolina, and LARRY ) 

LEAKE. S. KATHERINE BURNETTE, ) 

FAIGER BLACKWELL, DOROTHY ) 

PRESSER and JUNE YOUNGBLOOD ) 

in their capacity as the North Carolina ) 

Board of Elections, ) 

) 
) 

) 
) 

) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 

Defendants 

and 

ALFRED SMALLWOOD, DAVID 

MOORE, WILLIAM M. HODGES, 

ROBERT L. DAVIS, JR., JAN VALDER, 

BARNEY OFFERMAN, VIRGINIA 

NEWELL. CHARLES LAMBETH, and 

GEORGE SIMKINS, 

Applicants to Intervene as 
Defendants. 

        
      

    

>, p— 

 



  

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MEMORANDUM IN SUPPORT OF MOTION TO INTERVENE 
    

Defendant intervenors Alfred Smallwood, David Moore, William M. Hodges, Robert L. 

Davis, Jr.. Jan Valder, Barney Offerman, Virginia Newell, Charles Lambeth and George Simkins 

hereby submit this Memorandum in support of their Motion to Intervene as defendants. 

I. STATEMENT OF CASE 

This case presents another equal protection challenge to the congressional apportionment 

plan enacted in 1997 to remedy the constitutional violation found in Shaw v. Hunt, S17 U.S. 

116 S.Ct, 1894, 135 L.Ed.2d 207 (1996) [hereinafter “The 1997 Remedy Plan”]. This action was 

originally filed in July, 1996 to challenge the First congressional district while Shaw v. Hunt was 

still pending. Several of the present applicants filed a motion to intervene at that time. The case 

was stayed before any ruling was made on the Motion to Intervene. Following this Court’s Order 

rt’ dissolving the stay, the plaintiffs filed an amended complaint and the defendants obtained an 

enlargement of time until November 25, 1997 in which to file their answer. 

Il. STATEMENT OF FACTS 

Under Fed.R Civ P. 24, applicants seek to intervene in this action to defend the interest of 

African American and white voters of the State of North Carolina in the preservation of a racially 

diverse electoral process. Applicants live in the First and Twelfth congressional district as drawn 

in the 1997 Remedy Plan. Applicants were all defendant-intervenors in Shaw v. Hunt, and fully 

participated in the proceedings including at the remedy stage when the Court approved the 

legislature's remedial plan, They contend that the 1997 Remedy Plan is constitutional. 

 



    

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IL. ARGUMENT 

A. INTERVENTION IS APPROPRIATE AS OF RIGHT UNDER RULE 24(a) 

The rules on intervention are to be construed broadly, in favor of the potential intervenor. 

See, e.g., Feller v. Brock, Inc., 802 F.2d 722 (4th Cir. 1986). Under Fed R.Civ P. 24, liberal 

intervention is favored to “dispose of as much of a controversy involving as many apparently 

concerned persons as 13 compatible with efficiency and due process.” Liberal intervention rules 

minimize the risk of inconsistent sequential adjudications of the critical issues. Hill v. Western 

Elec. Co., Inc., 672 F.2d 381 (4th Cir. 1982). 

To intervene as of right under Fed R.Civ.P. 24(a), an applicant must timely show that: 

(1) it has an interest in the subject matter of the action, (2) disposition of the action may 
practically impair or impede the applicant’s ability to protect its interest and (3) that 

interest is not adequately represented by the existing parties. 

Id. Proposed intervenors satisfy each of the requirements of Rule 24(a), 

The most important consideration in a determination of the timeliness of a motion to 

intervene is whether the delay has prejudiced the other parties. Spring Construction Co., Inc. v. 

Harris, 614 F.2d 374 (4th Cir, 1980). In this case, there is no delay. The application for 

intervention is being filed virtually simultaneously with the defendants’ answer, before any 

discovery has been conducted. Applicants first sought to intervene when the case was initially 

filed, as soon as they had knowledge that their interests were at stake, See, Stalhworth v. 

Monsanto Co., 558 F.2d 257, 267 (5th Cir. 1977) (intervenors who filed petition less than one 

month after learning of their interest “discharged their duty to act quickly”). They are now 

renewing their motion in a timely fashion. There have been no hearings, discovery, or other 

proceedings. Intervention at this point in the proceeding could not conceivably prejudice the 

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other parties. 

The dissolving of the stay opens a new stage of the litigation, Entry into litigation at the 

beginning of a “new stage” may be a particularly appropriate time. This is especially so where, as 

here, the “new stage” develops by virtue of a change in the law. Garza v. County of Los Angeles, 

918 F 2d 763. 777 (9th Cir. 1990), cer. denied, 498 U.S, 1028 (1991), United States v. Oregon, 

745 F.2d 550 (9th Cir. 1984) (change in circumstances “militates in favor of granting” 

application). Under these circumstances, applicants are well within the timeliness standards of 

Rule 24(a). 

B. Applicants Have A Direct Interest in the Method of Electing North 

Carolina’s Congressional Delegation. 

Interests sufficient to sustain a motion for intervention must be “significantly protectable” 

and direct rather than remote or contingent. Donaldson v. United States, 400 U.S. 517, 531 

oad (1971). The subject matter of this litigation is the method of electing North Carolina’s 

congressional delegation. All of the applicants, black and white voters living in congressional 

districts 1 and 12 in the 1997 Remedy Plan, have a direct and “sufficiently protectable™ interest in 

this matter. Applicants participated in Shaw v. Hunt and have an interest in preserving the remedy 

that was obtained in that case. Applicants’ participation culminated in the implementation of a 

remedial plan they supported. This challenge directly implicates applicants’ rights as embodied in 

that remedial decree. See, e.g., Johnson v. Mortham, 915 F Supp. 1529, 1536 (N.D Fla. 19935) 

(“registered voters have standing, and a sufficiently substantial interest to intervene, in an action 

challenging the voting district in which the voters re registered”). 

In numerous redistricting cases in this circuit following Shaw v, Reno, 113 S.Ct. 2816, 125 

 



   

  

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L Ed.2d 511 (1993), voters similarly situated to the applicants have been allowed to intervene, 

See, Moon v. Beyer, Civ. No. 3:95CV942 (E.D.Va. filed November 17, 1995) (intervention 

granted to African American and white registered voters in challenge to majority African 

American Third Congressional district): Johnson v. Mortham, 915 F.Supp. 1529, 1535-1537 

(N.D. Fla. 1995) (African American voters residing in the majority-black Third congressional 

district in Florida permitted to intervene as of right to defend challenge thereto). Leonard v. 

Beasley, Civ. No. 3:96-3640 (D.S.C., March 17, 1997) (order granting intervention to African 

American registered voters in congressional redistricting challenge) (copy attached), Smith v. 

Beasley, Civ. No. 3-95-3235 (D.S.C. September 27, 1996) (order granting intervention to African 

American registered voters in challenge to three South Carolina Senate districts on January 3, 

1996). Able v. Wilkins, Civ. No. 3-96-3-0 (D.S.C. September 27, 1996) (order granting 

intervention to African American registered voters in challenge to nine South Carolina House 

districts on February 23, 1996. In addition, the applicants in District 1 and District 12 have 

particular interests in defending the 1997 Remedy Plan. 

1. Residents of District 1 Have An Interest In the Creation of A 

Majority-Black District. 

Voters residing in District 1 have a direct interest in preserving the apportionment plan 

that has resulted in the election of the first African American congresspersons in North Carolina 

since 1910. See Baker v. Regional High School District #5, 432 F.Supp. 535, 537 (D.Conn, 

1977) (residents and voters of a school board election district had interest in ensuring fairness in 

method of electing school board that entitled them to intervene in apportionment challenge). 

Until the 1990 apportionment, African American voters effectively were excluded from 

meaningful participation in congressional elections because the candidates they supported 

 



   

  

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routinely were defeated by white bloc voting. The plan challenged here eliminates the historic 

exclusion of black voters by creating a majority black district that gives meaningful expression to 

the voters’ electoral aspirations. These voters clearly have an interest in its preservation. In 

I'eller, supra, proposed intervenors’ similar interest in preserving wage guarantees for workers 

who had been disadvantaged by foreign workers’ lower rates was deemed sufficient to require 

intervention. Feller, 802 F.2d at 730. 

Voters in District 1 also have a direct interest in safeguarding the State's continuing 

efforts to remedy past voting rights violations and ensure compliance with sections 2 and 5 of the 

Voting Rights Act. This interest can be discerned from the language of the statute itself which 

guarantees that the “right of citizens of the United States to vote is not denied or abridged on 

account of race or color.” 42 U.S.C. §1973(b). 

2 Residents of Districts 1 and 12 Have An Interest In Preserving Their 

~~ Electoral Coalitions, 

Applicants in Districts 1 and 12 have an interest in preserving the communities of interest 

that have been empowered in these districts. The Twelfth District applicants live in the first 

uniquely urban district in the history of the State. These applicants have a direct interest in 

preserving the communities of interest within the district that never before have been recognized 

or represented as such in Congress. These applicants share common concerns about crime, poor 

schools, joblessness, deteriorating housing stock and deteriorating infrastructure. 

In the First District, these applicants are part of an impoverished agricultural community 

that shares many common needs and concerns, including high unemployment, shrinking 

agricultural revenues and the concomitant need for specialized assistance programs and training 

 



   

  

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Applicants residing in the First and Twelfth Congressional Districts also have a direct 

interest in protecting the seat of their preferred congressional candidate. Indeed, the 1990 

apportionment gave these voters their first opportunity to be a part of a winning multiracial 

coalition in over 80 years, They have an interest in protecting that opportunity. See Trafficante 

v. Metropolitan Life Insurance Co., 409 U.S. 205 (1972) (recognizing white plaintiffs’ interest in 

“social benefit[] of living in an integrated community” and “business and professional advantages” 

resulting from living with members of minority groups). 

C. Denial of Intervention Will Practically Impair and Impede Applicants’ 

Ability to Protect Their Interests. 

The question whether an applicant’s interest will be impaired or impeded is a practical, 

rather than a legal one. Applicants need not prove that they would be bound by res judicata in 

any judgment in the case. Where the disposition of the case would impair the applicants’ ability to 

’ protect his or her interest in the matter, Rule 24(a) intervention may be allowed. Spring Constr. 

Co.. Inc. v. Harris, 614 F.2d 374 (1980). 

As a practical matter, an adverse ruling in this litigation has the potential to impede every 

terest asserted above. Plaintiffs here seek not only to invalidate the 1997 Remedial Plan. they 

also seek to advance an entirely new interpretation of the Voting Rights Act and application of the 

equal protection clause that is hostile to black political opportunity and racial diversity in the 

congressional delegation. 

If plaintiffs prevail, the state’s ability to create majority black districts and to otherwise 

remedy past voting discrimination seriously could be undermined. Black voters’ concomitant 

opportunity to participate in a racially fair electoral process also could be obliterated. See In re 

 



   
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Grand Jury Proceeding, 36 Fed. R.Serv.2d 521, 5213 (4th Cir. 1983) (reversing district court’s 

or denial of taxpayers’ motion to intervene in grand jury subpoena enforcement proceeding which 

sought records held by petitioners’ banks, holding that “movant need only demonstrate a 

colorable claim of legal right to status to establish the requisite interest’ under [Rule] 24(a)™) 

(emphasis added). See generally 7 C. Wright, A. Miller & M. Kane, Federal Practice & 

Procedure: Civil 2d. §1908 at 285 (1986) (“[1]n cases challenging various statutory schemes as 

unconstitutional or as improperly interpreted and applied, the courts have recognized that the 

interests of those schemes are sufficient to support intervention”), 

In addition, an adverse decision, or adverse factual or legal determinations regarding 

Districts 1 and 12 could have a stare decisis or collateral estoppel effect on any subsequent 

litigation to achieve remedial districts for voting rights violations in the State of North Carolina. 

See Atlantis Dev. Corp. v. United States, 379 F.2d 818, 828 (5th Cir. 1967) (permitting 

intervention by a private developer in an action by the federal government to enjoin development 

of coral reefs owned by the developer): see also United States v. Oregon, 839 F.2d 635, 6348 

(9th Cir. 1988) (“where factual determinations may be made and upheld on appeal that would 

have “a persuasive stare decisis effectin . . . subsequent litigation,” applicant’s interest may be 

impaired). Even where it is not entitled to collateral estoppel effect, an adverse judgment may 

create the kind of “practical disadvantage” thought sufficient to warrant intervention of right. 

Nuesse v. Camp, 385 F.2d 694, 702 (D.C Cir. 1967). 

Moreover, granting applicants amicus status will not relieve this disadvantage nor enable 

them to adequately protect their interests. Applicants would not be allowed to conduct nor 

participate fully in discovery, file motions, present evidence, cross-examine witnesses, make a 

 



   

  

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® PS [do023 

record for appeal, or appeal a final judgment in the litigation, See Sagebrush Rebellion, Inc. v. 

Wart, 713 F.2d at 528 (9th Cir. 1983) (intervenors should be able to participate fully in making 

the record on which they may have to rely on appeal); United States v. Oregon, 745 F.2d 550, 

553 (9th Cir. 1984) (recognizing “obvious distinction between parties and amici”). 

D. Applicants’ Interests Cannot Be Adequately Represented by the State of 

North Carolina, 

The burden of showing that an applicant’s interests will not adequately be represented is 

“minimal.” A showing that the representation of applicant’s interest may be inadequate 1s 

sufficient. There is no need to show actual inadequacy of representation. Trhovich v. United 

Mine Workers, 404 U.S. 528, 538 n.10 (1972), United Guaranty Residential Insurance Co. w. 

Philadelphia Savings Fund Society, 819 F.2d 473, 476-76 (4th Cir, 1987). Even where the 

applicant's interests are consistent with the defendants’, as for example, where they share the 

same goals, if they do not share identical interests, representation of the applicant may be 

inadequate and intervention appropriate. Irbovich, 404 U.S. at 538. 

Several reasons compel the conclusion that the State may not adequately represent the 

interests of applicants in this case. First, North Carolina's interests are far broader than those of 

the applicants. The State must represent the public interest of the entire State. See Trbovich, 404 

U.S at 538-549. It must balance the interests of white and minority voters who support the 

current apportionment plan as well as those who oppose it. It must also look at issues of 

incumbency, questions of geographic boundaries traditional political divisions or communities 

within the State. See Sierra Club, 945 F.2d at 780. Eradication of the yestiges of discrimination 

against Afiican Americans — however desirable its importance to the State may be - is only one of 

 



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many competing interests that North Carolina confronts. 

The inability to adequately represent the interests of a subset of the general public is not 

atypical for government parties. See, ¢.8., Trbovich, 404 U.S. 528, 538-39; In re Sierra Club, 

045 F.2d at 780: See also Diamond v. District of Columbia, 792 F 2d 179, 192 (D.C.Cir. 1986) 

(private party seeking to protect narrow, financial interest allowed intervention despite presence 

of government which represented general public interest), Natural Resources Defense Council, 

Ine. v. EPA. 99 FRD. 607, 610 (D.C.Cir. 1983) (order allowing pesticide manufacturers and 

industry representatives to intervene as defendants, despite the fact that both EPA and intervenors 

wanted to uphold regulations, because their interest “cannot always be expected to coincide”), 

New York Public Interest Group, Inc. v. Regents of the Univ. of the State of North Carolina, 516 

F.2d 350, 352 (2d cir. 1975) (three pharmacists and a pharmacy association permitted 

intervention to defend particular economic interest in a challenge brought by a consumer group 

against the Regents to enjoin enforcement of statewide regulation); Chiles v. Thornburg, 8635 

F 2d 1197. 1214-15 (11th Cir. 1989) (federal prison detainees’ interests may not be adequately 

represented by county); Associated General Contractors of Connecticut, Inc. v. City of New 

Haven, 130 ERD. 4, 11-12 (D.Conn. 1990)(minority contractors’ compelling economic interest 

was sufficient to show that city may not adequately represent their interests even though both 

parties were committed to defending set-aside statute). 

Second. while the State’s and applicants’ interest may converge on issues such as 

preservation of the existing districts, they may diverge when it comes to questions such as 

application of the Voting Rights Act, the extent of remedies necessary for curing past violations 

and related questions. The State’s first interest is in ensuring its ability to create apportionment 

10  



   
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plans as it sees fit. This is a distinct interest from the applicants’ interest in the creation of 

majority black districts and preservation of a racially diverse electoral process. 

In fact. the State has been a defendant in several voting rights cases. See, e.g. Gingles v. 

FEdmisten, 590 F.Supp. 345; Alexander v. Martin, No. 86-1048-Civ-5 (EDNC). Particularly 

where the government has been an opposing party in litigation concerning the same subject 

matter. it may not adequately represent its former adversary. See Sierra Club, 945 F.2d at 780; 

McQuilken v. A & R Development Corporation, 510 F.Supp. 797, 803 (E.D.Pa. 1981). This 

logic is sound; where a government body did not act of its own initiative, but rather as a result of 

legal compulsion, it may not wholeheartedly defend an action it did not initially want to take, 

The State also may not adequately represent applicant's interest where it is unlikely to 

present all of the applicants’ defenses. Town of North Hempstead v. Village of North Hills, 80 

F RD. 714. 717 (E.D.N.Y. 1978); Fiandaca v. Cunningham, 827 F.2d 825 (1st Cir. 1987) 

(likelihood that applicants would introduce additional evidence favors intervention), In this 

circumstance, it is uncertain that the State would “undoubtedly make all of the intervenor’s 

arguments,” or that it is “capable and willing to make” certain arguments. Sagebrush Rebellion, 

Inc. v. Watt, 713 F.2d at 528. 

Iv. PERMISSIVE INTERVENTION IS ALSO PROPER UNDER RULE 24(b) 
  

Permissive intervention is appropriate when, “upon timely application . . . an applicant’s 

claim or defense and the main action have a question of law or fact in common.” Fed R.Civ.P. 

24(b). As outlined above, the intervenors clearly seek to raise defenses to the plaintiffs’ challenge 

to the constitutionality of the North Carolina Apportionment plan that share common factual and 

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legal questions with the main action. Moreover, considerations of judicial economy weigh heavily 

in favor intervention. Atlantis Dev. Corp. v. United States, 379 F.2d at 825 (noting “great public 

interest . . .[i]n having a disposition . . . of as much of the controversy to as many of the parties 

as fairly possible™). Thus, even if the Court should determine that not all of the requirements of 

Fed.R.Civ.P. 24(a) have been met, the Court should permit the requested intervention under Rule 

24(b). 

Vv. CONCLUSION 

For all the reasons set forth herein, the proposed intervenors’ Motion to Intervene should 

be granted. 

This 25th day of November, 1997. 

Yi. e 
teeth JS AAT ss 

ADAM STEIN i 

~~ ANITA S. HODGKISS 

Ferguson, Stein, Wallas, Adkins, Gresham & 

Sumter, P.S. 

312 West Franklin Street 

Chapel Hill, North Carolina 27516 

(919) 933-5300 

    
  

ELAINE R. JONES 

Director-Counsel 

NORMAN J. CHACHKIN 

JACQUELINE A. BERRIEN 

NAACP Legal Defense and Educational Fund, Inc. 

99 Hudson Street, Suite 1600 
New York, New York 10013 

(212) 219-1900 

Attorneys for Applicants to Intervene as Defendants 

Nii” 

12 

  

[d1026



   

  

05/14/98 THU 16:44 FAX 919 967 4953 FERGUSON STEIN do27 

~~ CERTIFICATE OF SERVICE 

The undersigned hereby certifies that she has this day served a copy of the foregoing 

MEMORANDUM IN SUPPORT OF MOTION TO INTERVENE upon opposing counsel by 

depositing a copy of same in the United States mail, postage prepaid, addressed to: 

Mr. Robinson O. Everett 

Suite 300 First Union National 

Bank Building 

Post Office Box 586 

Durham, North Carolina 27702 

Mr. Edwin M. Speas, Jr. 
Senior Deputy Attorney General 
North Carolina Department of Justice 
Post Office Box 629 
Raleigh, North Carolina 27602-0629 

This 25th day of November, 1997. 

2 (hve Hail ine 
Attorney for Applicants to Intervene 

as Defendants 

  

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